Something the American gov't has yet to understand...

[keith]

Not sure how much of this was intended as snarky comment vs. discussion.

Well I suppose I am unclear at which point the constitution ceased to be a political document. After all it was written to be modified and those who rule on it's written meaning are political appointees.

To Linda's position, I wasn't really intended to discuss whether regulation/taxation of political/religious speech is permitted or to what degree, but rather whether regulation/taxation of one brand over another is acceptable.

Well I suppose I found your construction tenuous. The idea that those opposing the civil rights movement held the constitution in high regard simply because they did not challenge the tax status of black churches is odd. After all they had no problem violating property rights, legal due process etc etc.

I would not have though that you would have believed that upholding the constitution was a pick and choose proposition.

I am not willing to cut ties between modern constitutional law and the document itself.

This does run the risk of guaranteeing a Derridean obsession with the nature of the text.

My snarky(ish) allusion was to the construction advanced by many 'constructionists' that certain laws, say the voting rights act, served a purpose that has expired. They were not unconstitutional then, but are unconstitutional now(?), this strikes me as a 'living document' interpretation - you change the meaning with the times.

Another example would be all that guff about treaties with foreigners. After all that was only put in as America was not even a minor power at the time the constitution was written. Clearly the world has changed and the relative interpretations should be balanced.

More seriously. Constitutions are not, in practice, the guarantors of rights. Those flows from the political process and the appointment of the judiciary, how else can one explain the expansion of constitutional protection to different groups?

Many non-constitutional states have similar, and in practice for most citizens, identical rights to America. In other constitutional states (say the old soviet union - lovely constitution) rights where somewhat more limited.

[dcmdale]

Keith... My question about snarkiness was really a recognition that a statement of disagreement that is thrown out in a quick post is not necessarily an invitation to engage.

I am willing to assign my statement to the realm of pure opinion. While both of us are smart people, trying to deconstruct the mind of a ‘50’s white racist in terms of 2009 thought categories and legal possibilities that didn’t exist until the 1980’s is likely to be futile. I currently live in an area of the country that is profoundly the product of its racial heritage with a level of racial hatred that most of the country would think had died 40 years ago. Would these people want to use the tax code to systematically shut down the black church? Absolutely not. For these people having “white church” and “black church” is one of the last refuges of separate but “equal.” That has got to be balanced in the Bible Belt by an almost mystic reverence for anything “church.” Most people down here are about as Christian as a toadstool, but social christianity runs very deep. “Talladega Nights” comes to mind. We could argue all day about which provides the stronger motivation.

I am certainly not going to argue that the Constitution is a perfect document or that there is some kind of sacred aura around its text. As a document, it absolutely contains petty clauses serving the interests of certain of its authors and, even at a higher level, enshrines the issues of the day. It reflects the fact that its authors were revolutionaries and wanted to protect the kinds of anti-government activities that they would have hung for under British rule. It embodies a “committee document” mentality with plenty of compromise. Many of the amendments are poorly written and not well integrated in terms of their intended impact on the rest of the document. There are some huge practical areas where the document is silent.

However, it is what it is: a contract between the states (and, arguably [though I don’t care to], by extension, the people).

Do *I* advocate picking and choosing? No. Do I attribute picking and choosing to others? Absolutely. As the saying goes, “If the facts are in your favor, pound on the facts. If the law is in your favor, pound on the law. If neither is in your favor, pound on the table?” I would say that most people are quite happy to rely on the Constitution when it is in their favor and try to ignore it when it isn’t. Some of your examples, and their advocates, fall into that category—even if they call themselves “strict constructionists.” Likewise, advocates of the constitution as a “living document” are quite happy to rely on the wording and history when it suits their purposes.

Ultimately, the Constitution is a memorial of the contract that as a society we are working under. Its intent is to be open so that everyone can read it and interpret it. As you mention, other countries work quite well without a written constitution. Some countries that have constitutions don’t follow them. A stop sign doesn’t make people stop either. One does not need to look very hard to find examples where constitutional rights in the United States were trampled either, but there is some sense in which we can look back and objectively say, “Yes. We did wrong.”

To the extent that our Constitution is intended to resolve how the political process works within our society and the limitations of what political power can do, I think that fuzziness about the rules is dangerous. I believe that we dodged a bullet in 2000. Frankly, both at the state and federal judicial levels there was more than a little fuzziness injected by judges that were more concerned with outcome than process. That is dangerous.

Likewise, it is dangerous for us to allow fuzziness in protection for minority situations and viewpoints. “Freedom” and “Democracy” are naturally opposites, not synonyms.